Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General
Salley W. Elliott and Senior Assistant Attorney General Norman
Mark Rapoport, all of Columbia, and Robert Mills Ariail, of
Greenville, for Petitioner/Respondent.

Katherine
Carruth Link, of West Columbia, for Respondent/Petitioner.

JUSTICE
PLEICONES: We granted certiorari to review the Court of Appeals decision
in State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006)[1] and now affirm, as modified, that
court’s decision to grant respondent a new trial. In a split decision, Judges
Short and Anderson found reversible error in the jury’s possession of a statute
during deliberations; in addition, Judge Short found that evidence should have
been suppressed, and Judge Anderson found reversible error in the verdict form.

We hold, as did Judge Short, that an unsigned search warrant is
invalid, and agree with Judge Anderson that when a verdict form is submitted to
a jury in a criminal case, it must affirmatively offer a “not guilty” option.
Finally, while we agree with Judges Short and Anderson that it was error to
permit this jury to have a written version of the trafficking statute with it
during deliberations, we would not find sufficient prejudice from that error
alone to warrant reversal.

ISSUES

1)

Did Judge Short err in holding that an unsigned
search warrant is invalid?

2)

Did Judge Anderson err in finding the verdict form
here was so prejudicial as to require reversal?

3)

Did permitting the jury to have a written version
of the trafficking statute with it during deliberations require
reversal?

ANALYSIS

1. Warrant

The search warrant in this case is signed by the
magistrate, and dated September 28, 2002; the accompanying two-page affidavit
is signed by her on each page, and both these signatures are dated September
26, 2002. The return is signed and dated September 27, 2002. It is undisputed
that the warrant was obtained and served on September 26, 2002.

At trial,
respondent contended that the warrant was unsigned when it was served, that it
was therefore invalid, and that accordingly the evidence seized pursuant to the
search should be suppressed. Respondent argued that, without the magistrate’s
signature, the warrant was not issued within the meaning of South Carolina’s
search warrant statute, S.C. Code Ann. § 17-13-140 (1985). The trial judge
refused to suppress the evidence even though he found the warrant had not been
signed before it was served, holding that the search warrant statute was
subject to a “good faith” exception, and that such an exception was applicable
here.

On
appeal, Judge Short held that the search warrant was not issued within the
meaning of the statute because it lacked a timely signature. Judge Short also
held there was a good faith exception to the statutory warrant procedures, but
that it was inapplicable here. We agree that the absence of the magistrate’s
signature at the time the warrant was served invalidates it, but do not reach
the issue whether there exists a “good faith” exception to the statutory
warrant requirements since we find, as explained below, that no warrant was
ever issued.

We have held, in
the context of an arrest warrant, that such a warrant is not lawful where the
issuing judicial officer failed to sign the warrant on the space provided on
the warrant form. Davis v. Sanders, 40 S.C. 507, 19 S.E 138
(1894). Although the State would characterize such an omission as merely
procedural or ministerial, we disagree. The Davis Court gave a
persuasive explanation of the signature requirement, albeit in the context of
an arrest warrant:

[W]hen
it is remembered that a sheriff or other officer, who undertakes to arrest a
citizen under a warrant, is bound to show his warrant, if demanded, to the
person proposed to be arrested, and if he refuses to do so the arrest may be
lawfully resisted [internal citation omitted], we think it would be very dangerous
to the peace of society for the court to hold that a paper, which shows on its
face that it is an unfinished paper…would be a sufficient justification for an
arrest.

The
same policy considerations apply to a search warrant, [2] and thus the lack of the issuing officer’s signature is not excusable as merely
procedural or ministerial, but rather negates the existence of a warrant,
creating instead “an unfinished paper.” As the Davis Court went on to
hold, the fact that the issuing officer intended to sign the warrant and had in
fact signed the back was not sufficient to validate it, nor was the arrest
legal despite the fact the officers who executed the arrest pursuant to the
“warrant” were “entirely innocent of any intentional wrong.”

The Davis requirement that a warrant must be signed by the issuing judicial officer in
order to be complete is a common law decision predicated on public policy
considerations. The signature is the assurance that a judicial officer has
found that law enforcement has made the requisite probable cause showing, and
serves as notice to the citizen upon whom the warrant is served that it is a
validly issued warrant. Without the signature, it is merely an “unfinished
paper.” Davis, supra; see alsoDuBose v. DuBose,
90 S.C. 87, 72 S.E. 645 (1911) (“But it has been decided [in Davis]
that, when an officer is performing the ministerial duty of issuing a paper on
compliance with certain conditions prescribed by law, his signature at the foot
of the paper he intended to sign is necessary to its validity”).

We consider also whether the unsigned warrant can be
upheld in the face of § 17-13-140, the general search warrant statute. The
statute contains requirements different from those mandated by the Fourth
Amendment, and is in some ways “more strict” than the federal constitution. State
v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987). While we have recognized
a “good faith” exception to the statute’s requirements where the officers make
a good faith attempt to comply with the statute’s affidavit procedures, McKnight, supra, explaining State v. Sachs, 264 S.C. 541, 216 S.E.2d 501
(1975), we have left open the question whether a good faith exception would be
applied where “the officers reasonably believe the warrant is valid when the search
is made, but is subsequently determined to be invalid.” McKnight, supra.
Here, we do not reach the question whether there exists a good faith exception to
the statute where a defective warrant is issued, since under South Carolina law
an unsigned warrant is not a warrant, and is not capable of being issued within
the meaning of § 17-13-140. See alsoDavis, supra (officers good faith irrelevant where warrant is not signed).

The circuit court erred in refusing to suppress the
evidence seized pursuant to the unsigned “warrant.” Respondent is therefore
entitled to a new trial.

2. Verdict Form

In this case, the jury was given a verdict form which
tracked the provisions of the trafficking statute, but did not specifically
allow the jury to return a “not guilty” verdict. We agree with Judge Anderson
that this was error and hold that henceforth, any verdict form given to a jury
for use in a criminal case must specifically include as an option “not guilty.”
We therefore overrule State v. Myers, 344 S.C. 532, 544 S.E.2d 851 (Ct. App. 2001) to the extent it holds that a jury charge can negate prejudice from the lack
of a “not guilty” choice on a verdict form.

3. Trafficking Statute

Judge Short and Judge Anderson found reversible error in
the trial court’s submission to the jury of the trafficking statute, while
Judge Goolsby found no error. Since this case was tried and the appeal decided
by the Court of Appeals, we have held that it is within the trial judge’s
discretion to “submit its instructions on the law to the jury in writing.” State
v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007). We caution the bench
again, as we did in Turner, that this practice should be used sparingly,
and only where it will aid the jury and where it will not prejudice the defendant.
It is never appropriate, however, to give only part of the charge to the jury
as was done in this case.

CONCLUSION

The Court of Appeals decision reversing respondent’s
convictions and sentences is

Chief Justice Toal: Although I concur in the decision to affirm the
court of appeals’ decision reversing Covert’s conviction, I write separately
because I would reach this decision on different grounds.

As
a primary matter, I do not find that Davis v. Sanders, 40 S.C. 507, 19
S.E. 138 (1894) controls this case. Davis was decided over one hundred
years ago, prior to the passage of § 17-13-140. Moreover, the Davis Court, in the absence of any statutory authority, relied on prior case law in
declaring that a warrant must be signed.[3]SeeState v. Vaughn, 16 S.C.L. (Harp.) 313 (1824)
(holding that a warrant that was signed but not sealed was nevertheless a valid
warrant). Moreover, I find it significant that the parties in Davis conceded that a warrant had to be signed, thereby leaving only the issue of
whether the magistrate’s notation on the warrant constituted a signature for
the Court’s determination. Accordingly, I believe that Davisis
somewhat irrelevant to the facts of this case and that we must solely look to §
17-13-140 to determine the validity of this warrant.

Section 17-13-140 does not specifically require the
magistrate to sign the warrant, but rather, merely requires that a magistrate
“issue” the warrant. Nonetheless, a magistrate’s signature indicates that she
has made the necessary probable cause finding required before issuing the
warrant. Even assuming that an unsigned warrant is defective, I do not believe
that this alone necessarily renders the warrant void ab initio.

This Court has held that the good faith exception to
the exclusionary rule applies in cases where officers make a good faith attempt
to comply with the statute’s affidavit requirements. See State v. McKnight, 291 S.C. 110, 112-13, 352 S.E.2d 471, 472 (1987) (refusing to
apply the good faith exception where the officers failed to attempt to comply
in good faith to the affidavit requirements); State v. Sachs, 264 S.C.
541, 559, 216 S.E.2d 501, 510 (1975) (allowing evidence to be admitted pursuant
to the good faith exception where officers attempted in good faith to comply
with the statutory requirements). In my view, the policy reasons for applying
the good faith exception to the exclusionary rule in other cases are applicable
in this case. SeeState v. Harvin, 345 S.C. 190, 194, 547 S.E.2d 497, 500
(2001) (recognizing that the main purpose of the exclusionary rule is the deterrence
of police misconduct). Covert does not
allege that the officers knew the warrant was unsigned or deliberately obtained
the warrant without a signature, and the record contains no evidence that he
was prejudiced by the statutory violation. Therefore, I would hold that the
officers attempted in good faith to comply with § 17-13-140’s requirements and
the exclusionary rule should not render the evidence inadmissible.

In my view, the fatal flaw in the State’s case is its
failure to present any evidence at trial that the magistrate made a probable
cause finding. As the majority observes, the signature on the warrant
indicates that a judicial officer found that law enforcement made the requisite
probable cause showing, a finding clearly required before a warrant may be
issued. The State bore the burden of proving the validity of the warrant and,
in my view, while the absence of a magistrate’s signature may be a factor in
determining whether the warrant was issued upon probable cause, it is not
dispositive of the determination. However, by failing to call the magistrate
to testify that she issued the warrant upon finding probable cause, the State
failed to present any evidence to show the warrant was valid and therefore did
not carry its burden. See Sachs, 264 S.C. at 555, 216 S.E.2d at 508 (recognizing
that “all that is necessary to justify the issuance of a warrant is probable
cause”); see also U.S. Const. amend. IV and S.C. Const. art. I
(mandating that a warrant must be supported by probable cause).

For these reasons, I would hold that the good faith exception is applicable
under these circumstances, but that the State failed to carry its burden of
proving the magistrate issued the warrant upon finding probable cause.
Accordingly, I concur with the majority’s decision to affirm as modified the
court of appeals’ opinion.

[1] The facts are fully reported in that opinion, and the verdict form is
reproduced in Judge Anderson’s concurring opinion.

[3] Specifically, the Davis Court found that the lower court properly
charged the jury that “a warrant need not be under seal, yet it must be in
writing, and signed by the officer issuing.” Id. at 509, 19 S.E. at
139.